R v Thomson - [2009] SASC 237

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v THOMSON
[2009] SASC 237
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice David and The Honourable Justice Kelly)
11 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - OTHER OFFENCES
Prosecution appeal against sentence on ground of manifest inadequacy - respondent pleaded guilty to four counts of imposition contrary to s 29B of the Crimes Act 1914 (Cth) and three counts of dishonestly causing a loss to the Commonwealth contrary to s 135.1(5) of the Criminal Code (Cth) - District Court Judge imposed sentence of two years and nine months imprisonment and ordered respondent be released forthwith on entering into recognizance to be of good behaviour for two years.
Held: Sentence was so inadequate as to require intervention by appeal court in order to maintain an adequate standard of punishment for crimes involving deliberate and sustained fraud on social security system - guidelines laid down in Kovacevic clear and should be followed by sentencing Judges. Respondent re-sentenced to extent of cancelling release order forthwith and ordering that she be imprisoned for nine months of sentence before being eligible for release on recognizance.
Crimes Act 1914 (Cth) s 29B, s 20 ; Criminal Code (Cth) s 135.1(5), referred to.
R v Ozenkowski (1982) 30 SASR 212; Everett v R (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; Kovacevic v Mills (2000) 76 SASR 404; DPP (Cth) v AB (2006) 94 SASR 316, applied.

R v THOMSON
[2009] SASC 237
Court of Criminal Appeal: Bleby, David and Kelly JJ

BLEBY J: I agree with the orders proposed by Kelly J and with her reasons.
DAVID J: For the reasons given by Kelly J, I would allow the appeal. I agree with the orders she proposes.
KELLY J:
Introduction
The Director of Public Prosecutions has appealed against a sentence imposed in the District Court.
The respondent pleaded guilty in the Magistrates Court to four counts of imposition contrary to Section 29B of the Crimes Act 1914 (Cth) and three counts of dishonestly causing a loss to the Commonwealth contrary to Section 135.1(5) of the Criminal Code (Cth). The maximum penalty for each of the offences of imposition is two years imprisonment and for each of the offences of dishonestly causing a loss, five years imprisonment.
On 27 May 2009 the respondent was sentenced to imprisonment for a period of two years and nine months. Under the provisions of Section 20 of the Crimes Act she was released forthwith upon entering into a recognizance to be of good behaviour for two years.
The appellant has only appealed against the failure to order that at least some of the sentence be served in custody. It was contended that the order for immediate release was a manifestly inadequate sentence, such as to require intervention by this Court in order to maintain an adequate standard of punishment for crimes of this nature.
Background
The offences for which the respondent was convicted were committed over a period of some eight and half years from September 1994 to April 2003 and then for a further period of some three years from September 2004 to November 2007. In February 1994 the respondent applied for and was granted a parenting pension in relation to her two young children at a time when she was their fulltime carer and on leave from her employment. She returned to work in September 1994 but did not notify the Department of Social Security of that return. Thereafter she continued to receive a pension until 22 April 2003. On that date payments ceased because a data match between the Australian Taxation Office and the Department of Social Security revealed that she was employed.
Later in 2003, the respondent took leave without pay from her employer and on 6 August 2003 re-applied for a parenting pension. At that stage she was entitled to the pension.
On 25 November 2003 the respondent was interviewed by Centrelink and agreed that she had previously failed to inform Centrelink that she had received the pension during a period that she was employed.
In July 2004 she resumed work with the same employer but did not advise Centrelink of her return to work and continued to receive pension payments to which she was not entitled from September 2004 until December 2005.
Significantly in that same time period she was, on 19 November 2004, served with an Information and a Complaint charging her with social security fraud. She appeared in the Magistrates Court in 2005 in relation to those charges but having later failed to attend on court dates, a bench warrant was issued for her arrest on 9 December 2005.
In December 2005 the respondent commenced working for the Department of Family and Community Services and again did not advise Centrelink of her employment but continued to receive pension payments to which she was not entitled until November 2007. During that time period, in June 2006 she lied to Centrelink during a phone call about her work status and again in April 2007 by falsely informing Centrelink that she would be starting work with the Department for Family and Community Services on 30 April 2007, despite having worked there since December 2005. She also told Centrelink in April 2007 she would advise their office of her income but never did so. In October 2007 the respondent was placed on a fortnightly reporting regime and falsely completed three payment forms between October and November 2007 stating that she had received no income from her employment. Payments to her were stopped in November 2007 because she did not return a review form sent to her by Centrelink.
The total amount of money received by the respondent to which she was not entitled between 1994 and November 2007 was $101,324.67.
Principles which apply on prosecution appeals
The principles which apply in relation to prosecution appeals are well established and require little elaboration.
Permission will only be granted if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime so as to shock the public conscience: R v Ozenkowski (1982) 30 SASR 212; Everett v R (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168 at 172. In this case counsel for the appellant contends that it is necessary for this Court to intervene in order to maintain adequate sentencing standards.
Discussion
The starting point for consideration of the sentencing principles applicable in this case is this Court’s decision in Kovacevic v Mills (2000) 76 SASR 404. In that case the Full Court provided clear guidelines for judicial officers when sentencing in cases of deliberate and sustained fraud.
The question of whether a sentence is to be suspended, or, as was the case here, an early release order is to be made, must be considered in light of all the circumstances surrounding the offending. A court should have particular regard to the seriousness of the offending where both general and personal deterrence are important factors in the sentencing process. The objective seriousness of a particular class of offending may mean that in cases of that class a suspension of the sentence will be very difficult to justify: DPP (Cth) v AB (2006) 94 SASR 316 at 331; Kovacevic v Mills (2000) 76 SASR 404 at 411-412. This was such a case.
The factors in this case which seem to have persuaded the sentencing judge that an order for immediate release was appropriate are that the respondent is a sole parent of two young children, has no real prior convictions of any significance (although not a first offender), has a good employment record and is unlikely to reoffend. His Honour also appears to have been influenced by the fact that at around the time when she was to be sentenced, the respondent was suffering a major depressive disorder apparently brought on as a result of this matter and a pending WorkCover matter.
None of these factors either standing alone or in combination are uncommon in cases involving social security fraud. For example, it is not uncommon that an offender is a person of otherwise good character without any prior history of offending; however where as was the case here, the offending spanned a lengthy period of time, the weight to be attached to the person’s good character must necessarily diminish.
It is also the case that orders for immediate terms of imprisonment will almost always operate to place a burden on offenders’ families, the more so when as here, the offender is the sole parent. Nevertheless, there was no suggestion that the respondent’s two fifteen year old children would not be adequately cared for during any term of imprisonment the respondent was required to serve. In fact as at the date of sentencing it appears that appropriate arrangements for their care had been made.
The respondent’s mental state at the time of sentencing was a factor to which the sentencing judge was required to have regard, however it might be observed that it is often the case that offenders by reason of the stress involved in the legal proceedings that inevitably follow once their offending is detected, often suffer from depressive disorders, even major depressive disorders. There was no suggestion in this case that the respondent’s psychological health was such as to lead to the conclusion that imprisonment would be a greater burden on her by reason of her state of health.
There were in this case aggravating features of the respondent’s offending which militated against an order for early release. One of the most significant, which the sentencing judge appears to have either overlooked or not to have fully appreciated, was the fact that the respondent continued to offend for a significant period of time notwithstanding the fact that she had been charged with offences arising out of the earlier course of conduct between 1994 and 2003. Although the judge acknowledged twice in the course of his sentencing remarks that it was of concern that the respondent continued offending notwithstanding the commencement of Centrelink investigations, it does not appear that he appreciated the full significance of the events which had occurred by the start of the second phase of the respondent’s offending. Centrelink had not only begun investigations but by 19 November 2004 the respondent had already been charged with the earlier offences. Thereafter, she was required to appear in court and after failing to appear, a bench warrant was issued for her arrest in December 2005. In addition to that were the respondent’s deliberate lies to Centrelink officers during 2006 and 2007 about her income and work status.
All of this was against the background that for over eleven and a half years the respondent had engaged in a deliberate and sustained course of fraudulent conduct involving the receipt of over $100,000 to which she was not entitled. There was no suggestion that the respondent was destitute. The material before the sentencing judge illustrated that the respondent, during the relevant period was receiving on average over $1,075 per fortnight by way of her employment. These are all seriously aggravating factors which militated against an order for early release being made.
In providing for those members of the community who are most in need the social security system relies on the honesty of recipients of pensions to report relevant changes in their work status which might affect their entitlement to receipt of a continuing pension. As this Court pointed out in Kovacevic sustained fraudulent conduct against the system, as was the case here, tends to undermine it and because of its widespread and insidious nature to impose substantial costs upon the wider community. In my respectful view none of the mitigating factors relied on by the sentencing Judge were sufficiently unusual to justify the order for immediate release.
In my view if this Court does not intervene then the effect of this decision would be to significantly erode the appropriate standard of punishment for similar cases. For these reasons I consider it necessary for this Court to intervene in order to maintain adequate standards of punishment for this type of crime. I would grant permission to the Director to appeal and I would allow the appeal.
The original sentence of two years and nine months should stand. In my view the Judge should have ordered that the respondent serve twelve months of that sentence in custody before being eligible for release on a recognizance. However, this is a Crown appeal and consistent with well established principle this Court in determining the appropriate sentence, should err on the side of mercy. Therefore I would order that the respondent serve nine months of the sentence before being eligible for release on a recognizance. I would order that after serving nine months in custody the respondent may enter into a recognizance on the same terms and conditions imposed by the sentencing Judge.